Court Skirts Free-Speech Issue in “Sexting” Decision

A Third Circuit review of a "Sexting" case against a 16-year-old Pennsylvania girl does little to guide future prosecutions. The teen, accused of providing sexually explicit photos of herself, was prosecuted on child pornography charges, but was seen as a possible answer to the question whether minors engaged in "sexting" with other minors received First Amendment free-speech protection.

Many had hoped the Third Circuit Court's decision would finally provide guidance to the question whether minors have a First Amendment right to send nude or explicit photos and messages through their cell phones. Instead of tackling the First Amendment issue head on, the court instead ruled that there had to be evidence that the minor was responsible for the distribution of the explicit material. The 16- year-old appeared in the photos but could not be tied to the distribution of them. No evidenced was introduced about how the pictures were distributed. (For the full decision, click here.)

The controversy started when school officials in a Scranton, PA suburb found the explicit photos on male students' phones. The county district attorney offered special classes to the teens allegedly involved, giving them the choice of attending the education program or facing child pornography charges. The 16 year old girl refused to attend the course and was charged. The ACLU sued on the girl's behalf. Initially federal judge James Munley ruled for the ACLU and issued an injunction blocking charges against the girl, claiming the pictures did not fit the description of child pornography under Pennsylvania Law and were protected under the First Amendment. The third circuit initially indicated that it would consider the First Amendment issue, but declined to consider it in the final ruling.